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My Cousin Veto and the Military Authorization Bill: A Lesson In Presidential Power

In this earlier blog post I argued that it was unlikely that Obama would veto the fiscal 2012 military authorization bill that had just passed the Senate by overwhelming numbers, 93-7, despite objections from both progressives and conservatives that the bill, as worded, allowed military authorities to hold Americans indefinitely if they were suspected of engaging in terrorism on U.S. soil. Although Obama’s senior advisers were recommending a presidential veto, I noted that was not the same as Obama himself issuing a veto threat – a distinction that was sometimes lost in the impassioned debate over the bill that has consumed the blogosphere during recent days.

Yesterday, in an effort to avoid provoking a presidential veto, members of the House and Senate armed forces committees, working in House-Senate conference, apparently tweaked the fiscal 2013 military authorization bill by approving language clarifying that the bill would not affect the FBI and other law enforcement’s national security authority. The revised bill also altered language to make it the President, rather than the Secretary of Defense, who can issue a waiver to move suspects from military to civilian custody. The new language, which was included in a conference designed to iron out differences between the Senate and the House versions of the bill, must now pass muster again with both chambers, but it is likely to go in its current form to the President’s desk for his signature. Civil libertarians are not mollified by the new language and are insisting that the President veto it. If he does, it will be only the third veto he has issued.

But, in my view, he won’t veto the bill. If he doesn’t progressives undoubtedly will again criticize him for sacrificing principle on the altar of political expediency. However, this bill has bipartisan support and it includes a variety of other issues that have strong backing of key legislators in both congressional chambers. Historically, presidents don’t veto military authorization bills in large part because of their omnibus nature; they usually contain something for everybody. So while much of the attention is focused on the detainee section, the bill also has other key provisions agreed to in bipartisan deliberations headed in the Senate by the chair of the Senate Armed Services Committee Carl Levin and the ranking Republican John McCain. Those provisions include restrictions on transferring Guantanamo detainees to the mainland for another year, freezing aid to Pakistan pending that nation’s cooperation on military matters, and a host of military-related pork barrel items pertaining to weapons production, base closings and other local matters of concern to influential legislators focused on bringing the bacon back home. Getting 93 votes also meant that some senators lost out on key issues. McCain, for instance, was unhappy with a provision that would place the head of the National Guard on the Joint Chiefs of Staff.

Given the tepid nature of Obama’s “veto threat” in the administration’s Statement of Policy, it seems inconceivable to me that he will veto this bill. But that doesn’t mean his veto talk was cheap. Instead, the language used in the SAP was enough to persuade members of Congress to change the bill’s language to provide Obama with the political cover he needs to sign the bill into law. By political cover, I don’t mean that it was mere window-dressing – the modified language, while perhaps not enough to please everyone, did provide enough substantive clarity to at least meet some of the administration’s objections, even if it did not go as far as Obama’s aides might have liked.

We are sometimes tempted to judge a president’s influence on the legislative process by the number of vetoes he issues; a “strong” president will veto bills that do not conform to his preferences. But a better indicator is how Congress reacts to veto threats. After all, if the president feels compelled to veto a bill, it is an indication that his threats were not effective. The distinction is a useful reminder of Richard Neustadt’s famous adage that presidential power – his effective influence on outcomes – is rooted primarily in a president’s formal powers – including the veto. However, because those powers are shared in our constitutional system, presidents cannot rely on formal authority alone to get what they want. Indeed, the use of formal powers as the final option – think issuing a veto – often reflects presidential weakness. But this doesn’t mean formal powers aren’t useful. As Neustadt argues, “presidential ‘powers’ may remain inconclusive when a president commands, but always remain relevant when he persuades.” And how does he persuade? The answer, in Neustadt ’s classic phrase: “The power to persuade is the power to bargain.” Formal powers such as the presidential veto, then, give the President a vantage point from which to influence the legislative process, even if those powers cannot determine the outcome. This is precisely what we see happening with the military authorization bill. Obama used his formal power – or more precisely, the threat of using it – to nudge the bill a bit closer to his preferred outcome. We shall find out, probably by the end of this week, whether it was moved close enough to avoid a veto.

2 comments

It seems like this bill has a variety of provisions that large groups of people are unhappy with: the National Guard position on the JCS and the de facto suspension of habeas corpus for Americans suspected of terrorism. Why can’t the president be given line-item veto powers like so many governors to get rid of this crap, while still allowing the business part of the bill to pass? And why would someone even try to add the American detention provision to the bill, isn’t that clearly unconstitutional based on the concept ‘speedy trial’ embodied in the 6th amendment?

In fact, the President did – briefly – possess the line item veto, at least a limited version. Republicans passed line item legislation as part of their Contract with American after they came to power in 1994, and Bill Clinton used the authority to pare down some spending bills. Alas, in the case of Clinton v. City of New York, the line item veto was ruled unconstitutional (Clinton had used the line item authority to veto a tax break linked to Medicaid reimbursements.) The majority of the Court said the Constitution does not allow the President to, in effect, partially repeal part of a bill because it violated the presentment clause. It’s not clear to me, however, that even that version of the line item veto would have come into play here.